f  Use's  and  Trusts; 
of  1  Case . 

John  Currey 


UNIVERSITY  OF  CALIFORNIA 


ROBERT  ERNEST  COWAN 


Of  Uses  and  Trusts 

REVIEW 

OF 

The  Fair  Will  Case 

(  J32  California  Rep.,  523-580 ) 


THE    STAR    PRESS — JAMES    H.    BARRY 


T 


' 


02. 


OF  USES  AND  TRUSTS. 


Review    of    the    Decision    of    the    Supreme    Court, 

in   the    Case    of    the    Will  of  James 

G.     Fair,    Deceased. 

( BY  JOHN  CURREY. 

Trusts  to  Uses,  or  Uses  and  Trusts,  a  system  of  trans- 
fers of  lands  to  trustees  in  trust,  to  and  for  the  use  of  a 
beneficiary,  denominated  a  cestui  que  use,  or  cestui  que 
trust,  was  of  Civil  Law  origin,  introduced  into  England 
at  an  early  period  of  its  history.  There  were  two  kinds  of 
trusts,  one,  called  a  Special  or  Active  Trust,  by  which 
the  author  of  it  imposed  on  the  trustee  the  performance 
of  active  duties  in  the  management  and  use  of  the  lands 
transferred  to  him  for  the  use  of  the  beneficiary,  until 
the  termination  of  the  trust.  The  other  kind  was  called  a 
Formal  or  Passive  Trust,  by  which  the  trustee  was  made 
the  naked  repository  of  the  title  to  the  estate  transferred 
to  him.  The  beneficiary  in  the  latter  case  was  entitled 
to  the  possession  and  all  the  rents,  issues,  and  income 
thereof.  At  law,  the  title  vested  in  the  trustee  by  the 
transfer  was  of  the  whole  estate,  in  fee  simple,  with  all 
the  incidents  of  absolute  ownership.  He  could  mortgage 
or  sell  the  property  of  the  estate  as  his  own.  It  could  be 


subjected  to  the  payment  of  his  debts.  He  could  dispose 
of  it  by  last  will  and  testament.  It  would  descend  to 
his  heirs  if  he  died  intestate.  If  he  died  intestate  with- 
out heirs,  it  would  escheat  to  the  crown. 

1  Perry  on  Trusts,  Sec.  321. 

Thus,  at  law,  the  title  in  the  trustee  was  absolute. 
The  beneficiary  had  neither  jus  in  re  nor  jus  in  rem  in 
the  estate  transferred  in  trust,  though  so  transferred  to 
and  for  his  use  and  benefit.  But  the  Courts  of  Equity 
then  established  in  England  regarded  the  beneficial  in- 
terest in  the  estate  as  of  substantial  value,  and  in  the 
exercise  of  their  equitable  jurisdiction  held  such  interest 
to  be  an  equitable  estate.  Thus  it  was  that,  at  law,  the 
legal  estate  was  in  the  trustee,  and,  in  equity,  the  benefi- 
cial estate  was  in  him  for  whose  use'  and  benefit  the 
author  of  the  trust  created  it.  The  equitable  estate,  it 
appears,  was  the  creation  and  creature  of  the  exercise  of 
the  equitable  jurisdiction  of  Courts  of  Equity.  This 
estate  drew  to  it  the  legal  title  vested  in  the  trustee — in 
the  case  of  a  Passive  Trust,  immediately  upon  the  crea- 
tion of  such  trust,  and,  in  the  case  of  an  Active  Trust, 
immediately  upon  the  performance  and  fulfillment  by 
the  trustee  of  all  the  duties  of  a  purely  trust  nature. 

The  Act  of  Parliament  passed  in  the  27th  year  of 
Henry  VIII,  known  as  the  "Statute  of  Uses,"  operated 
to  transfer  all  legal  titles  vested  in  trustees  of  Passive 
Trust  estates,  existing  at  the  time  that  Act  went  into 


I  7 


effect,  to  the  beneficiaries,  and  also  so  operated  to  trans- 
fer all  such  legal  titles  afterwards  created  and  vested  in 
trustees  of  Passive  Trust  estates,  as  soon  as  created. 

This  Act  of  Parliament  did  not  change  the  law  as  to 
Active  Trusts.  The  legal  title  remained  in  the  trustee, 
as  before  the  passage  of  that  Act,  until  conveyed  to  a 
beneficiary  or  designated  remainderman. 

1  Lewin  on  Trusts,  p.  210. 
1  Perry  on  Trusts,  Sec.  309. 

The  law  of  uses  and  trusts,  as  to  the  nature  and  char- 
acter of  the  title  vested  in  the  trustee  of  an  Active  Trust 
estate,  under  the  English  law,  was  the  law  of  the  State  of 
New  York  on  the  subject  down  to  the  year  1830,  when  the 
52  Legislature  of  that  State,  by  an  Act  entitled  "Of  Uses 
2*  and  Trusts,"  abolished  all  laws  of  the  State  before  then 
H  in  force  relating  to  uses  and  trusts,  except  as  provided  in 
^  that  Act.     That  Act  made  a  radical  change  as  to  the 
I  nature,  quality,  and  duration,  of  the  title  and  estate 
vested  in  the  trustee.    Under  the  English  law,  the  whole 
title  was  vested  in  the  trustee,  without  qualification  or 
limitation,  and  remained  in  him  until  he  conveyed  it. 
Under  the  New  York  law  before  the  Act  of  1830,  the 
estate  of  the  beneficiary  in  the  property  granted  or  de- 
vised in  trust  was  deemed  an  equitable  estate,  as  contra- 
distinguished from  a  legal  estate.    That  Act  made  that 
which  was  an  equitable  estate  before  its  passage,  a  legal 
estate. 


306568 


The  Civil  Code  Act  of  the  State  of  California  was 
adopted  in  1873,  and,  like  the  New  York  Act,  made  all 
such  equitable  estates,  legal  estates.  Under  our  Code 
law,  the  estate  of  a  remainderman  or  an  heir-at-law,  in 
the  residuum  of  an  estate  so  granted  or  devised  in  trust, 
is  a  legal  estate,  vested  at  the  time  the  trust  is  created. 
If  created  by  deed  of  conveyance,  it  is  vested  when  the 
deed  is  delivered  and  accepted  by  the  grantee.  If  by  will, 
it  is  vested  when  the  testator  dies.  On  this  point,  the 
cases  of  Livingston,  34  N.  Y.,  557,  567;  of  Watkins  vs. 
Vroornan  &  Reynolds,  51  Hun.,  175,  and  same  case  on 
appeal,  123  N.  Y.,  211;  Gilman  vs.  Redington,  24  Id.,  9, 
15,  16 ;  Embury  vs.  Sheldon,  68  Id.,  234-5 ;  Stevenson  vs. 
Lesley,  70  Id.,  515-18,  and  Campbell  vs.  Stokes,  142  Id., 
23,  and  many  others,  may  be  consulted,  showing  that  the 
estate  of  a  residuary  devisee  or  an  heir-at-law  in  being, 
is  a  legal  estate,  and  also  showing  when  it  vests  in  in- 
terest. 

The  foregoing  brief  history  of  the  English  common  L-ixv 
doctrine  relating  to  uses  and  trusts,  and  in  respect  to  the 
difference  between  that  law  and  the  law  of  uses  and 
trusts  adopted  by  the  State  of  New  York  in  1830,  and 
by  the  Legislature  of  this  State  in  1873  and  1874,  as  to 
the  nature,  quality,  and  duration  of  an  estate  granted  or 
devised  in  trust,  is  deemed  essential  to  a  ready  under- 
standing of  the  position  of  our  Supreme  Court  in  its 
decision  of  the  questions  involved  in  the  consideration 
and  construction  of  the  provisions  of  the  will  of  James  G. 
Fair. 


The  decision  and  judgment  "In  the  Matter  of  the 
tixtate  of  JaincH  G.  Fair,  Deceased,"  is  contained 
in  Volume  132  of  the  reports  of  the  decisions  of 
our  Supreme  Court.  The  opinion  of  four  of  the  seven 
.J  ustices  of  the  Court  is  herein  referred  to  as  the  opinion 
of  the  Court.  The  Chief  Justice  and  Justices  Harrison 
and  Temple  dissented. 

The  decision,  and  the  controlling  opinion  leading  up 
to  it,  is  in  relation  to  the  law  of  uses  and  trusts  as  it 
existed  in  England  from  an  early  period,  and  in  New 
York  down  to  the  year  1830,  and  as  it  has  existed  in  that 
State  since  that  year,  and  as  it  has  existed  in  this  State 
for  more  than  twenty-five  years.  The  decision  is  of  more 
than  ordinary  interest  to  the  legal  profession,  and 
especially  to  persons  who  have,  or  may  have,  estates  to 
dispose  of  by  last  will  and  testament. 

By  his  will,  James  G.  Pair,  a  resident  of  the  State  of 
<  'alifornia,  devised  all  his  real  property  to  trustees,  to 
have  and  to  hold  the  same  in  trust  for  and  during  the 
lives  of  his  three  children,  for  their  use  and  benefit.  This 
trust  was  followed  by  a  direction  that  his  trustees  should 
transfer  and  convey  his  estate  remaining  to  ce.rtain  of 
his  grandchildren,  as  a  class,  and  to  his  brothers  and 
sisters  and  children  of  deceased  brothers  and  sisters,  as 
another  class,  in  proportions  specified  in  his  will.  This 
will  was  made  and  executed  in  due  form  in  September, 
1894,  after  which,  in  December  of  that  year,  the  testator 
died,  leaving  him  surviving,  his  three  children,  a  grand- 
child, and  brothers  and  sisters,  and  children  of  deceased 


6 

brothers  and  sisters.  The  will  was  contested  by  the  son 
of  the  testator,  as  appears  in  the  action  or  proceeding 
instituted  by  him  for  the  purpose  of  breaking  down  the 
will.  The  decision  of  the  trial  Court  was  in  favor  of 
the  contesting  plaintiff.  The  main  ground  of  contest 
was  that  the  direction  or  instruction  contained  in  the 
will,  to  transfer  and  convey  the  property  of  the  estate 
upon  the  termination  of  the  life  trust,  as  in  the  words  of 
direction  provided,  was  not  one  of  the  enumerated  pur- 
poses of  trust  authorized  by  our  Civil  Code  of  uses  and 
trusts.  The  contestant's  object  was  to  break  down  the 
trust  created  for  the  benefit  of  the  children,  though  ad- 
mitted to  be  valid  as  a  trust  in  itself,  and  to  that  end  the 
alleged  unauthorized  direction  was  made  subservient. 
To  the  attainment  of  this  ultima  thule  of  the  contesting 
plaintiff,  it  was  deemed  essential  on  his  part  to  establish 
to  the  satisfaction  of  the  Court  the  following  three  prop- 
ositions : 

(1).  That  by  the  devise  in  trust,  the  testator  in- 
tended to  devise  to  his  trustees  the  whole  of  said  estate 
in  fee  simple,  and  that  he  did  so  devise  to  them  the  whole 
estate  in  trust,  for  two  purposes,  the  one  for  the  use  and 
benefit  of  the  children  so  long  as  they  might  all  live,  and 
the  other  in  trust  to  convey  the  estate  remaining  after 
the  death  of  all  the  children,  to  the  classes  of  persons 
designated  in  the  will,  as  residuary  devisees,  by  a  deed 
or  deeds  of  conveyance  to  be  executed  to  them  by  the 
trustees. 


(2).  That  said  direction  or  instruction  to  transfer 
and  convey  the  remaining  property  of  the  estate  to  the 
classes  named  was  unauthorized,  and  therefore  nugatory 
and  void  and  impossible  of  execution,  and,  being  nuga- 
tory and  void,  the  testator's  intention  to  give  and  devise 
such  remaining  estate  to  his  grandchildren  and  others 
was  defeated,  and  therefore  he  must  be  deemed  held  and 
considered  as  never  having  intended  to  give  and  devise 
such  property  to  said  classes  of  persons. 

(3).  That  the  subjects  of  the  two  foregoing  proposi- 
tions are  so  interwoven  and  inseparably  connected  as  to 
constitute  a  scheme,  to  the  effect  that  the  former,  valid 
in  itself,  and  the  latter,  declared  to  be  invalid  and  void, 
must  necessarily  fail  and  fall  together. 

FIRST. 

i 

With  respect  to  the  first  of  the  foregoing  propositions, 
the  Court  determines  and  decides  that  the  estate  vested 
in  the  trustees  by  the  devise  to  them  in  trust  for  the 
use  and  benefit  of  the  children  was,  in  its  nature,  quality, 
and  duration,  an  estate  in  fee  simple,  to  continue  and 
remain  in  them  in  trust  until  conveyed  by  them  by  deed, 
at  some  future  time,  to  those  to  whom  the  testator  in- 
tended it  should  eventually  belong  in  full  property. 
This  position  of  the  Court  is,  in  effect,  a  denial  that  the 
estate  vested  in  the  trustees  was  only  an  estate  for  the 
lives  of  the  children,  or,  in  other  words,  a  life  estate. 

In   approaching  the  discussion   of  the  question  as 


8 

to  the  effect  of  the  devise  in   trust,   the  Court,   per 
Garoutte,  J.,  says: 

"We  are  now  directly  confronted  with  a  question 
of  construction,  namely :  Does  this  provision  of  the 
will  place  in  the  trustees  a  trust  to  transfer  and  con- 
vey the  estate  to  certain  of  Fair's  kindred?  Or, 
upon  the  contrary,  was  it  to  be  construed  as  a  direct 
devise  to  those  kindred?  *  *  *  Does  such  a 
provision  create  a  trust  in  the  trustees  to  transfer 
and  convey  the  estate?"  ( 132  CaL,  543. ) 

In  the  construction  of  the  habendum  clause  in  the  will, 
the  Court,  at  page  545,  per  the  same  Justice,  says : 

"Stress  is  laid  by  the  appellants  upon  the  words, 
'  to  have  and  to  hold  in  trust,  during  the  lives,'  etc., 
fixing  the  estate  of  the  trustees ;  yet,  it  is  plain,  the 
simple  purpose  and  effect  of  that  clause  is  only  to  fix 
the  time  when  the  trustees  shall  make  the  convey- 
ance— shall  transfer  and  convey  the  estate.  These 
words  were  not  used  to  fix  the  quantum  of  the  estate 
of  the  trustees,  but  to  fix  the  day  when  the  fee  should 
be  conveyed  to  the  beneficiaries."  The  Court  then 
goes  on  to  say  that,  "It  seems,  under  these  circum- 
stances, that  if  a  complete  and  perfect  fee  ever  could 
vest  in  a  person,  it  has  vested  in  these  trustees." 
And,  in  conclusion,  the  Court  says:  "It  follows, 
from  these  views,  that  the  contention  of  the  appel- 
lants, to  the  effect  that  the  trustees  took  only  an 
estate  for  the  lives  of  Fair's  children,  or  an  estate 
for  life,  with  an  incidental  fee,  which  allowed  them 


9 

to  sell  and  transfer  the  property  during  that  period, 
cannot  be  maintained." 

At  page  530,  the  Court,  per  McFarland,  J.,  in  speaking 
es]>ecially  as  to  whether  the  testator  intended  by  the 
words  of  his  direction  to  transfer  and  convey,  to  devise 
the  remainder  to  his  grandchildren  and  brothers  and  sis- 
ters, says: 

"Now,  in  the  case  at  bar,  it  is  perfectly  clear, 
beyond  even  a  reasonable  doubt,  that  the  testator 
did  not  intend  to  devise  estates  in  remainder  to  per- 
sons of  the  named  classes,  but  intended  to  devise  the 
whole  estate  in  fee  to  his  trustees  upon  trusts  to 
convey,  after  the  expiration  of  a  probably  very  long 
period  of  time,  to  those  persons,  so  that  the  latter 
would  receive  new  estates  created  by  the  conveyan- 
ces." 

At  page  549,  the  language  of  the  Court  is  equally 
strong  to  the  same  point. 

The  foregoing  passages  from  the  opinion  show  the  atti- 
tude of  the  Court  as  to  the  nature,  quality,  and  duration, 
of  the  estate  claimed  to  be  vested  in  the  trustees,  based 
upon  and  predicated  of  a  fallacy  to  the  effect  that  by  the 
devise  there  was  created  a  trust  of  the  remainder  of  the 
estate  in  the  trustees — a  thing  impossible  under  our  Code 
where  there  is  a  devise  of  such  remainder  to  persons  or 
classes  of  persons  in  fee  simple  absolute. 

The  Court  says  a  complete  and  perfect  fee  was  vested 
in  the  trustees  which  is  not  limited  to  the  lives  of  Fair's 


10 

children ;  that  such  complete  and  perfect  fee  to  the  whole 
estate  must  remain  in  them  until  conveyed.  All  this  was 
accomplished,  the  Court  holds,  by  the  creation  of  the 
primary  trust,  valid  as  a  trust  in  itself.  This  position  is 
as  conclusive  of  the  whole  estate  as  if  there  was  no  quali- 
fication or  limitation  imposed  thereon  by  law — either 
by  positive  law  or  judicial  construction. 

Under  our  Code  system  of  uses  and  trusts  in  this  State, 
no  trust  in  lands  can  be  created  embracing  the  remainder 
devised  in  fee  simple  absolute,  nor  of  an  estate,  granted 
or  devised  in  trust  to  and  for  the  use  of  designated  bene- 
ficiaries, of  longer  duration  than  for  lives  of  persons  in 
being;  hence  the  declaration  that  it  could  not  be  main- 
tained that  the  trustees  took  only  an  estate  for  the  lives 
of  Pair's  children,  or,  in  other  words,  an  estate  for  life, 
is  upon  the  face  of  our  Code  statutes  untenable,  because 
untrue,  for  when  in  such  case  the  lives  of  all  the  benefi- 
ciaries of  the  life  estate  are  ended,  the  trust  is  ended, 
and  the  estate  before  then  vested  in  the  trustees,  is  also 
ended.  This  is  so  declared  in  Section  871  of  the  Civil 
Code,  in  these  words : 

"When  the  purpose  for  which  an  express  trust 
was  created,  ceases,  the  estate  of  the  trustees  also 
ceases." 

A  trust  and  a  trust  estate  cannot  exist  without  a  bene- 
ficiary. If  all  the  beneficiaries  are  dead,  the  property  of 
the  precedent  and  expired  trust  estate  does  not  remain  in 
the  defunct  trustees.  Their  office,  depending  essentially 


11 

upon  the  existence  of  a  beneficiary  and  a  trust  estate, 
becomes  vacant  at  the  moment  when  there  is  no  longer 
in  existence  a  beneficiary  and  a  trust  estate.  The  title 
to  the  estate  in  such  case  is  not  left  in  abeyance  by  the 
termination  of  the  trust.  If  already  devised  to  a  remain- 
derman, it  vests  at  once  in  him  in  possession.  If  not 
already  devised,  it  vests  in  possession  in  the  heirs  at  law 
of  the  author  of  the  trust.  In  either  case,  the  title  is  a 
legal  title,  as  distinguished  from  an  equitable  title  or 
estate.  Section  866  of  our  Civil  Code  is  as  follows : 

"Where  an  express  trust  is  created  in  relation  to 
real  property,  every  estate  not  embraced  in  the  trust, 
and  not  otherwise  disposed  of,  is  left  in  the  author 
of  the  trust  or  his  successors." 

It  plainly  appears  that  the  Court's  position  is,  that 
by  the  devise  to  the  trustees  in  trust,  Fair  vested  in 
them  the  whole  estate  in  fee  for  a  two-fold  purpose — the 
one  to  the  use  and  benefit  of  his  children,  for  and  during 
their  lives,  and  the  other  in  trust  to  have  and  hold  the 
estate  to  the  use  and  benefit  of  a  new  set  or  class 
of  beneficiaries,  namely,  the  residuary  devisees,  by 
the  testator  designated  by  the  words  of  his  instruc- 
tion or  fMrrrtinn iwrt  to  transfer  and  convey  the 

property  to  them.  Such  is,  as  the  Court  holds,  the 
double  purpose  of  the  primary  trust,  which  is  to 
continue  until  the  conveyance  shall  be  made.  If  this 
were  so,  what  would  be  the  consequence?  The  trus- 
tees, being  seized  in  fee  of  the  whole  estate  in  remainder 


12 

for  the  purposes  of  the  additional  trust,  to  convey  it  at  a 
future  time  to  the  parties  entitled  thereto,  must  so  con- 
vey it  in  performance  of  their  duty.  The  making  of  such 
conveyance  being-  a  duty  imposed  by  law,  as  the  Court 
admits,  the  performance  of  such  duty  cannot  be  deemed 
to  be  unauthorized  and  therefore  illegal  and  void.  But 
the  Court  holds  thait  the  trustees  will  not  be  competent 
to  so  convey,  because  the  power  to  do  so  is  not  one  of  the 
enumerated  purposes  of  a  trust,  and  therefore  is  illegal. 
It  is  thus  seen  that,  on  the  one  hand,  the  trustees  are 
commanded  to  convey,  and,  on  the  other,  forbidden  to 
do  so.  The  consequence  of  these  conflicting  conditions  is 
to  leave  the  remaining  estate  vested  in  the  trustees  in 
fee  in  trust  to  and  for  the  use  of  the  beneficiaris  of  the 
additional  trust  estate,  their  heirs  and  successors  for- 
ever. In  this  condition  of  conflicting  demands  upon  the 
trustees,  it  may  be  asked :  What  are  you  going  to  do 
about  it? 

It  may  be  suggested  here,  that  the  Court's  construc- 
tion, carried  to  its  logical  consequence,  is  a  creation  of  a 
perpetuity,  forbidden  by  law.  This  must  be  the  case,  if 
the  estate  is  vested  in  the  trustees  in  fee  for  a  period 
extending  beyond  the  lives  of  persons  in  being. 

No  limitation  as  to  the  quantity  of  the  estate  devised 
is  conceded  by  the  Court,  nor  is  it  admitted  that  the  term 
of  the  trust  is  limited,  except  by  the  time  when  the 
trustees  shall  convey  the  remainder  to  the  residuary 
devisees,  for  it  is  said,  at  page  545  of  the  report  of  the 
decision,  that  the  trustees  were  vested  with  the  fee  to  the 


13 

whole  estate,  and  that  this  title  in  fee  is  not  limited  by 
the  lives  of  Fair's  children,  and,  further,  that  the  words 
of  the  habendum  clause  were  made  to  fix  the  estate  of  the 
trustees,  and  to  fix  the  day  when  the  trustees  should 
make  the  conveyance  to  the  beneficiaries,  that  is,  to  the 
remaindermen.  The  same  idea  is  boldly  advanced  at 
page  530,  to  the  effect  that  the.  whole  estate  was  devised 
to  the  trustees  for  the  purpose  of  enabling  them  to  con- 
vey the  remainder  thereof  at  a  future  time,  when  all  the 
children  would  be  dead  and  gone,  to  the  grandchildren 
and  others  named.  To  this  conclusion  the  Court  adheres 
with  steady  firmness,  necessitating  the  ignoring  of  the 
words  of  the  limitation  contained  in  Section  863  of  our 
Civil  Code,  which  section  is  in  these  words : 

"Except  as  hereinafter  otherwise  provided,  every 
express  trust  in  relation  to  real  property,  valid  as 
such  in  its  creation,  vests  the  whole  estate  in  the 
trustees,  subject  only  to  the  execution  of  the  trust. 
The  beneficiaries  take  no  estate  or  interest  in  the 
property,  but  may  enforce  the  performance  of  the 
trust." 

The  words,  "'subject  only  to  the  execution  of  the  tru&t" 
are  clearly  words  of  limitation,  that  is  to  say,  a  limita- 
tion of  the  quantum  of  estate  devised  in  trust  to  the 
trustees,  for  the  purposes  of  the  trust,  which  is  so  much 
of  the  estate  as  may  be  necessary  and  adequate  to  the 
execution  of  the  trust — no  more  nor  less. 

on  Tnixlx,  Sec.  320. 


14 

Morffew  vs.  R.  R.  Co.,  107  Cal.,  595. 
Benellack  vs.  Richards,  116  Cal.,  410. 
Moore  vs.  Appleby,  36  Hun.,  368,  and  same  case 
in  108  N.  Y.,  237,  affirmed  on  appeal. 

Having  first  determined  by  construction,  that  the 
whole  estate  was  vested  in  fee  in  the  trustees  in  trust, 
unaffected  by  any  qualification  or  limitation,  first,  to 
and  for  the  use  and  benefit  of  the  testator's  children,  and 
after  them,  by  the  continued  trust  to  convey  the  remain- 
der to  another  class  of  beneficiaries,  our  Court  utilizes  so 
much  of  our  Code  law  as  may  be  deemed  sufficient  to 
defeat  the  implied  power  of  the  trustees,  for  the  perform- 
ance of  the  final  act  imposed  on  them  by  law,  as  an  obli- 
gation. 

As  our  Civil  Code  is  the  law  of  this  State,  it  is  to  be 
obeyed  and  followed  in  all  cases  of  uses  and  trusts  cre- 
ated under  and  by  its  authority.  If  obeyed  and  followed, 
as  it  must  be,  it  results  that  no  express  trust  can  be 
created  to  carry  into  effect  a  devise  of  the  remainder  of 
the  estate,  granted  or  devised  in  trust,  under  and  in  con- 
formity with  our  law.  In  this  State,  there  is  no  statute 
as  in  the  State  of  New  York  on  the  subject  of  powers  in 
trust.  That  statute  cannot  be  called  into  service  as  an 
auxiliary  to  the  creation  of  an  active  trust  to  convey  the 
remainder  of  an  express  trust  estate,  as  was  done  in  the 
case  of  Townsend  vs.  Frommer,  125  N.  Y.,  446.  The 
decision  here  referred  to  is  said  by  our  Court  to  be 
"  almost  exactly  like  the  case  at  bar."  An  attentive  ex- 


15 

amination  of  the  deed  of  Mrs.  Curtis,  which  is  considered 
and  passed  upon  in  that  case,  shows  that  its  facts  and 
circumstances  were  widely  different  from  those  of  the 
"  case  at  bar."  Mrs.  Curtis,  as  it  appears,  granted  by 
deed  her  real  property  to  her  trustee,  upon  a  valid  trust 
to  and  for  her  own  sole  and  separate  use  and  benefit  for 
the  term  of  her  natural  life.  This  trast  was  followed  by 
a  direction  to  her  trustee  to  convey  the  corpus  of  the 
estate  to  certain  of  her  descendants  who  might  be  living 
at  the  time  of  her  death. 

The  opinion  of  the  Court  in  that  case  shows  that  the 
first  and  controlling  question  determined  was,  whether, 
upon  the  face  of  her  deed,  it  appeared  that  she  intended 
to  vest  a  present  interest  in  the  proposed  objects  of  her 
bounty,  or  whether  she  intended  to  retain  in  herself  the 
whole  estate  granted  in  trust,  for  and  during  her  life, 
subject  only  to  the  execution  of  the  life  trust,  postponing 
the  vesting  of  the  remaining  estate  in  those  to  whom  she 
intended  it  should  be  conveyed  at  the  termination  of  the 
life  trust,  if  then  living.  The  Court  held  that  she  in- 
tended to  retain  in  herself,  as  she  might  lawfully  do,  the 
whole  estate  during  her  life,  subject  only  to  the  execu- 
tion of  the  trust,  and,  as  a  consequence,  that  the  persons 
to  whom  she  intended  her  estate  to  ultimately  belong, 
took  no  interest  therein  during  the  term  of  the  life  estate. 
This  decision  was  a  determination  of  the  fundamental 
question  involved,  and  was  conclusive  of  every  other 
question  in  the  case  dependent  thereon.  It  is  plain  that 
all  questions  not  directly  involved  in  this  fundamental 


16 

proposition  were  irrelevant  to  the  issues  joined  between 
the  parties. 

There  is  nothing  apparent  upon  the  face  of  the  Fair 
will  showing  that  the  testator  intended  anything  other 
than  that  the  title  to  the  corpus  of  his  real  property 
should,  immediately  upon  his  death,  vest  in  fee  in  certain 
of  his  grandchildren  as  a  class,  and  his  brothers  and 
sisters  and  the  children  of  deceased  brothers  and  sisters 
as  another  class,  then  in  being,  in  the  proportions  by  him 
specified,  as  tenants  in  common,  subject  only  to  the  exe- 
cution of  the  trust. 

It  is  submitted  that  the  case  of  Townsend  vs.  Frommer 
is  in  no  just  sense  "like  the  case  at  bar"  in  any  essential 
particular  pertaining  to  the  will  in  question,  notwith- 
standing anything  advanced  by  the  Court  to  the  con- 
trary. 

The  case  here  referred  to,  though  inapplicable  to  any 
question  involved  "in  the  case  at  bar,"  has  never  been 
accepted  by  the  New  York  Courts,  as  sound  law.  It  was 
for  a  while  an  embarrassing  decision,  which,  in  the 
course  of  time,  has  been  substantially  overruled  and  dis- 
regarded as  "peculiar"  and  questionable.  In  respect  to 
it,  see  Campbell  vs.  Stokes,  142  N.  Y.,  and  the  observa- 
tions of  the  text  writer,  Chaplin  in  his  Treatise  on  Ex- 
press Trusts  and  Powers,  Sec.  614. 

Our  Civil  Code  system  of  uses  and  trusts,  limiting  all 
estate  granted  or  devised  in  trust  to  uses  therein 
specified,  is  very  different  from  the  English  com- 
mon law  system  of  uses  and  trusts,  as  to  the 


17 

nature  and  duration  of  trust  estates.  Our  Code 
statutes,  read  in  pari  materia,  show  how  express 
trusts  in  relation  to  real  property  may  be  created. 
Sections  2221  and  2222  of  our  Civil  Code  provide  for  the 
creation  of  express  trusts  in  relation  to  lands.  Section 
847  limits  the  creation  of  such  trusts  to  the  purposes 
specified  in  the  Title  of  which  it  is  a  section.  Section 
857  enumerates  the  purposes  for  which  express  trusts 
may  be  created.  Section  863  declares  the  effect  of  such 
trusts,  valid  as  such  in  their  creation,  and  limits  the 
quantum  of  estate  granted  or  devised  to  so  much  thereof 
as  ma3r  be  necessary  and  adequate  to  the  execution  of  the- 
trust — no  more  nor  less — and  this  section  excepts  from 
the  operation  of  a  grant  or  devise  in  trust  all  the  prop- 
erty of  the  estate  other  than  the  quantum  thereof  that 
may  be  necessary  for  the  execution  of  the  trust;  and 
Section  864  declares  that,  "Notwithstanding  anything 
contained  in  the  last  section,  the  author  of  the  trust 
may,  in  its  creation,  prescribe  to  whom  the  real  prop- 
erty to  which  the  trust  relates  shall  belong  in  the  event 
of  the  failure  or  termination  of  the  trust,  and  may 
transfer  or  devise  such  property,  subject  to  the  execu- 
tion of  the  trust;"  and  Section  865  declares  the  effect 
of  such  transfer  or  devise  to  be  to  vest  in  the  grantee  or 
devisee  a  legal  estate  in  the  property,  subject  to  the  ex- 
ecution of  the  trust. 

Here,  it  is  in  effect  declared  that  the  author  of  the 
trust  is  competent  to  transfer  or  devise  all  the  property 
to  which  the  trust  relates,  subject  only  to  the  execution 


18 

of  the  trust,  which  he  could  not  do  if  the  whole  estate 
was  vested  in  the  trustees  in  fee,  in  trust  to  convey  the 
remainder  thereof  at  a  future  day  to  persons  or  classes 
of  persons  named  by  the  author  of  the  trust  in  his  will. 

These  Code  provisions,  read  and  construed  together 
as  constituting  a  system  of  uses  and  trusts,  are  easily 
understood.  The  New  York  statutes,  in  all  essential 
particulars  the  same  as  our  own  on  the  subject,  have 
been  interpreted  and  construed  by  the  Courts  of  that 
State,  in  none  of  which  was  it  ever  pretended  that  trus- 
tees take  an  estate  in  fee  in  the  property  thereof,  in  trust 
to  the  use  of  beneficiaries,  except  only  to  the  extent  lim- 
ited, namely,  only  to  an  extent  sufficient  and  adequate 
to  the  execution  of  the  purposes  of  the  trust. 

In  the  case  of  Oilman  vs.  Redington,  24  N.  Y.,  15-16, 
the  Court,  per  Comstock,  C.  J.,  after  referring  to  the 
statutes  relating  to  powers  in  trust,  said : 

"For  the  present  purpose,  it  is  only  material  to 
observe  that  the  estate  is  given  entirely,  and  not  for 
life,  to  the  three  children  of  the  testator.  The  limi- 
tation, it  is  true,  is  of  a  future  estate,  to  take  effect 
in  possession  at  the  end  of  the  trust  term.  Until 
then,  the  title  is  wholly  vested  in  the  trustees:  I 
mean  wholly  during  the  term  as  a  temporary  fee, 
and  it  is  vested  in  interest,  at  the  death  of  the  testa- 
tor, wholly  in  the  three  children.  According  to  the 
statute  (1  R.  S.,  p.  723,  Sec.  13),  a  future  estate  is 
vested  where  there  is  a  person  in  being  who  would 
have  an  immediate  right  of  possession  on  the  ceas- 
ing of  the  intermediate  or  precedent  estate.  The 


19 

three  children  were  in  being  at  the  death  of  the  tes- 
tator, and  by  the  very  terms  of  the  devise  would  be 
entitled  to  the  possession  and  enjoyment  of  the 
estate  at  the  expiration  of  the  trust.  It  was,  there- 
fore, a  present,  vested  devise  of  a  future  estate. 
And,  as  I  have  said,  the  devise  is  in  fee." 

The  statute  here  referred  to,  is  the  same  as  Section 
694  of  our  Civil  Code. 

Here  it  may  be  observed,  that  the  devise  referred  to, 
relates,  not  only  to  the  nature  and  duration  of  the  estate 
vested  in  the  trustees,  but  also  to  the  estate  vested  at  the 
same  time  in  the  remaindermen,  and  when  it  becomes  a 
vested  devise  or  remainder. 

The  case  of  Embury  vs.  Sheldon,  68  N.  Y.,  234,  235,  is 
in  exact  accord  with  Gilman  vs.  Redington.  In  Embury 
vs.  Sheldon,  the  Court  held  that  by  Section  60  of  the 
New  York  Act  (the  same  as  Section  863  of  our  Code), 
the  quantum  of  estate  acquired  by  the  trustees  was 
"merely  for  the  purposes  of  the  trust,  and  nothing  be- 
yond that" ;  and,  further,  the  Court  said : 

"It  is  true  that  during  the  existence  of  the  trust 
the  trustees  were  given  full  power  to  administer 
the  estate,  and  for  that  purpose  were  vested  with 
the  entire  control  over  the  estate;  but  such  a  tem- 
porary interest  does  not  interfere  with  or  prevent 
the  vesting  of  the  remainder  upon  the  termination 
of  the  trust  estate,  subject  to  the  right  of  the  trus- 
tees during  the  intermediate  period.  Nor  does  the 
declaration  in  Section  60,  to  the  effect  that  the 


20 

cestui  quc  trust  takes  no  interest,  conflict  with  the 
right  to  the  remainder,  or  prevent  the  vesting  of  the 
same.  It  only  applies  to  the  trust  estate,  and  the 
two  estates  are  entirely  consistent,  and  may  exist  at 
the  same  time." 

Stevenson  vs.  Lesley,  70  N.  Y.,  515-517,  is  a  strong 
case,  in  entire  accord  with  the  foregoing  decisions  in 
respect  to  the  nature  of  the  estate  vested  in  the  remain- 
dermen, and  when  it  vests  in  interest.  See,  also : 

Goebel  vs.  Wolf,  113  N.  Y.,  412,  et  seq. 

As  to  the  nature  of  the  estate  vested  in  the  trustees  in 
trust,  and  the  quantum  thereof,  our  Supreme  Court,  in 
the  case  of  Morffew  vs.  R.  R.  Co.,  107  Cal.,  595,  held  the 
same  to  be,  of  so  much  thereof  as  necessary  for  the  exe- 
cution of  the  trust — no  more  nor  less.  And  the  same 
doctrine  was  declared  by  the  Supreme  Court  of  the 
United  States,  per  Miller,  J.,  in  the  case  of  Young  vs. 
Bradley,  101  U.  S.,  in  an  elaborate  opinion  fortified  by 
many  authorities.  See,  also,  Benellack  vs.  Richards, 
116  Cal.,  410. 

The  remainder  is  no  part  of  a  trust  estate,  after  the 
termination  of  the  precedent  trust  estate.  If  there  was 
a  devise  of  the  residue  at  the  time  of  the  creation  of  the 
trust,  as  provided  in  Section  864,  no  trust  of  such  re- 
mainder could  be  deemed  to  be  created  thereby,  for  the 
plain  and  obvious  reason  that  our  Code  does  not  con- 
template a  devise  of  the  fee  for  such  a  purpose,  but  for- 


21 

bids  it,  as  held  by  our  Court,  and  for  the  further  reason, 
that  an  express  trust  cannot  be  created  for  an  illegal  or 
unauthorized  purpose,  and  for  the  still  further  reason 
that  the  grant  of  common  law  powers,  of  the  nature  of 
powers  in  trust,  does  not  vest  in  the  donee  of  the  power 
any  estate  or  interest  in  the  property  directed  to  be  con- 
veyed. See  N.  Y.  R.  8.  on  Uses  and  Trusts,  Sections 
58  and  59. 

If  the  donee  of  a  power  in  trust  to  convey  is  to  be 
deemed  the  trustee  of  an  active  trust,  as  held  in  Town- 
tend  vs.  Frommer,  supra,  such  trust  is,  in  its  nature,  sui 
generis,,  for,  in  every  express  trust  created  under  our 
Code,  there  must  exist  two  essential  factors,  namely,  a 
property-subject  and  a  beneficiary.  If  either  of  these 
be  absent,  the  trust  fails  for  want  of  an  indispensable 
constituent  of  its  existence. 

Powers,  denominated  common  law  powers,  are  inci- 
dents of  property  rights,  and  are  essentially  inherent 
and  necessary  to  the  exercise  of  the  right  which  everyone 
has  to  convey  his  property  while  living,  or  to  dispose  of 
it  by  last  will  and  testament.  Under  our  law,  the  testa- 
tor's right  and  power  to  dispose  of  the  remainder  of  his 
estate,  to  take  effect  as  a  vested  remainder  at  the  time 
of  the  creation  of  the  trust  estate  is  not  a  question  de- 
pending upon  construction.  Our  statutes  are  conclusive 
of  this  question.  The  decision  of  the  Court,  holding  that 
by  the  devise  in  trust,  to  trustees,  Fair  vested  in  them 
the  whole  estate  in  fee,  is  in  effect  a  denial  of  his  right 


22 

to  dispose  of  the  property  by  deed  or  will,  as  authorized 
by  Sections  863  and  864  of  the  Code. 

A  devise  of  the  remainder  of  the  trust  estate  is  held 
by  the  New  York  Courts,  as  already  seen,  to  be  a  vested 
devise  or  remainder,  unless  it  appears  affirmatively  by 
unequivocal  language  of  the  testator,  to  have  been  in- 
tended otherwise  by  him.  In  Moore  vs.  Lyons,  25  Wend., 
144,  the  Chancellor  said:  "A  remainder  is  not  to  be 
considered  contingent*  in  any  case  where  it  may  be  con- 
sidered as  vested,  consistently  with  the  intention  of  the 
testator." 

And  the  same  rule  is  laid  down  in  Embury  vs.  Shel- 
don, as  follows : 

"It  is  a  well  settled  principle,  that  the  law  favors 
the  vesting  of  estates,  and  unless  the  intention  be 
expressed  unequivocally  to  the  contrary,  it  will  not 
be  imputed  to  the  contrary.  And  the  remainder  is 
not  to  be  considered  contingent  where  it  may  be 
vested,  consistently  with  the  intention  of  the  testa- 
tor." 

The  foundation  of  the  rule  is  given  in  Oilman  vs.  Red- 
ington,  supra. 

The  devise  of  Fair  to  his  grandchildren  and  brothers 
and  sisters,  as  classes,  is  clearly  within  the  rule.  For 
example,  if  all  the  testator's  children  had  died  the  next 
day  after  his  death,  the  residuary  devisees,  namely,  the 
grandchildren  and  brothers  and  sisters  and  children  of 
deceased  brothers  and  sisters  living,  would  have  at  once 


23 

been  entitled  to  the  possession  and  enjoyment  of  the 
estate  in  fee  simple  absolute,  as  provided  by  the  statutes 
of  New  York,  and  also  by  our  own,  in  words  the  same. 
(N.  Y.  R.  8.,  p.  723,  Section  13;  Civil  Code  of  California, 
Section  694.) 

It  should  be  borne  in  mind  that  a  devise  of  real  prop- 
erty to  remaindermen  as  such,  under  Section  864,  is 
purely  testamentary,  and  not  in  any  sense  dependent 
upon  the  trust  estate  vested  in  the  trustees  to  and  for 
the  use  of  beneficiaries,  who  are  essential  constituents  of 
an  express  trust,  created  under  our  law  of  uses  and 
trusts. 

If  a  devise  of  the  remainder  is  made  to  a  beneficiary  of 
a  trust  estate  who  survives  its  termination,  as  is  some- 
times the  case,  he  does  not  take  under  the  devise  as  a 
beneficiary  of  the  expired  trust  estate,  but  as  a  testi- 
mentary  devisee.  A  direct  devise  in  fee  simple  absolute, 
is  not  and  cannot  be  the  creation  of  a  trust.  In  such 
case,  who  is  the  trustee,  in  whom  is  vested  the  estate  in 
trust?  And  what  property  or  estate  is  vested  in  him? 

The  decision  in  Campbell  vs.  Stokes,  142  N.  Y.,  23, 
deals  with  a  case  in  principle  like  that  of  Senator  Fair. 
In  that  case,  the  direction  was  to  the  trustees  to  parti- 
tion and  divide  the  remainder  of  the  estate  into  shares, 
and  to  transfer,  convey  and  deliver  them  to  those  en- 
titled thereto.  In  respect  to  the  question  considered, 
Andrews,  J.,  said : 


24 

"The  whole  scope  of  the  will  negatives  the  idea 
that  their  rights  were  dependent  in  any  way  on  the 
action  of  the  trustees,  or  that  the  vesting  of  their 
interests  awaited  the  exercise  by  the  trustees  of  the 
power  to  transfer,  convey  and  deliver  the  shares  to 
the  issue  so  entitled."  And  further  on  he  said: 
"There  is  no  room  for  the  application  of  the  tech- 
nical rule  sometimes  resorted  to,  to  ascertain 
whether  an  interest  given  by  a  will  is  vested  or  con- 
tingent, that  when  the  gift  is  only  found  in  the  di- 
rection to  divide  at  a  future  day  this  circumstance 
may  be  considered  to  have  weight.  It  is  a  rule 
ascertaining  the  real  intention  of  the  testator,  and 
not  for  defeating  it.  Those  entitled  under  the  will 
take,  not  because  the  power  of  division  was  given  to 
the  trustees,  but  independently  thereof." 

Applying  the  rule  there  laid  down,  the  residuary  devi- 
sees designated  by  Fair  in  his  words  of  direction  to 
transfer  and  convey  to  them,  did  not  take  because  the 
power  to  convey  was,  in  terms,  given  to  the  trustees,  but 
independently  of  it. 

The  New  York  Act  of  uses  and  trusts  has  been  in  force 
more  than  seventy  years,  and  the  decisions  of  the  courts 
of  that  State,  in  giving  effect  by  interpretation  and  con- 
struction to  its  provisions,  are  many;  and  many  deeds 
and  wills,  by  which  express  trusts  have  been  created,  in 
the  first  place  set  forth  the  terms  of  the  trust,  and  in  all 
such  cases,  there  is  a  time  fixed  for  its  termination,  gen- 
erally on  the  happening  of  a  specified  event.  In  many  of 
such  cases,  the  trust  is  followed  by  a  direction  to  the 


25 

trustees  to  convey  the  remainder  to  the  persons  by  the 
testator  named.  It  may  be  said  with  entire  safety,  that 
there  is  not  to  be  found  a  reported  decision  in  that  State, 
which  holds  that  a  direction  so  made  vitiated  the  pre- 
cedent trust  estate,  or  that  such  direction  was  not  a 
sufficient  expression  of  the  testator's  intention  as  to  the 
ultimate  disposition  and  distribution  of  his  property. 

In  the  case  entitled,  "In  the  Matter  of  Livingston," 
34  N.  Y.,  558-559  and  567,  the  trust  wras  created  by  a  deed 
executed  and  delivered  by  William  Winter  to  a  trustee, 
to  and  for  the  use  of  the  grantor,  for  and  during  his  life, 
followed  by  a  direction  that,  upon  his  death,  the  trustee 
should  assign,  transfer  and  convey  the  remaining  estate 
to  certain  persons,  by  the  grantor  named.  The  Court 
held  that  the  remaindermen  took  a  vested  estate  in  the 
remainder,  when  the  deed  was  delivered  to  the  trustee, 
rendering  a  deed  of  conveyance  from  the  trustee  useless. 
The  deed  directing  the  assignment  and  conveyance  was 
the  remaindermen's  title  deed. 

In  the  case  of  Watkins  vs.  Vrooman  and  Reynolds,  51 
Hun.,  175,  in  the  New  York  Supreme  Court,  it  appears 
that  William  Miller  devised  his  real  property  to  a  trus- 
tee upon  a  valid  trust,  to  and  for  the  use  and  benefit  of 
his  daughter,  Mrs.  Vrooman,  for  and  during  her  life,  fol- 
lowed by  a  direction  to  his  trustee  that  upon  her  death 
he  should  convey  and  deliver  the  property  to  her  heirs, 
who  would  be  living  at  the  time  of  her  death.  The  ques- 
tion before  the  Court  was,  whether  a  deed  of  conveyance 
from  the  trustee  to  said  heirs  was  necessarv  in  order 


26 

to  vest  in  them  the  title  to  the  estate?  The  Court  held  it 
unnecessary  on  the  ground  that  the  title  was  arleady 
vested  in  said  heirs.  The  heirs  named  derived  their 
title  Z>y  the  devise  of  their  grandfather  Miller,  ~by  and 
through  the  words  of  direction  to  convey  and  deliver  the 
estate  to  them,  upon  the  death  of  their  mother.  The  will 
of  William  Miller,  executed  as  by  the  law  required,  was 
the  title  deed  of  his  grandchildren,  the  heirs  of  Mrs. 
Vrooman,  living  at  the  time  of  her  death.  This  case  was 
taken  to  the  Court  of  Appeals,  and  there  the  decision  of 
the  Supreme  Court  was  affirmed  (123  N.  Y.,  211).  The 
Court,  per  Peckham,  J.,  considered  at  length  Section  67 
of  the  statutes  of  that  State,  on  uses  and  trusts  (which 
in  all  respects  is  the  same  as  Section  871  of  our  Civil 
Code),  holding  that  this  section  rendered  it  unnecessary 
for  the  trustees  to  execute  a  deed  of  conveyance.  "So 
far,"  said  the  Court,  "as  the  vesting  of  the  title  in  the 
heirs  of  Mrs.  Vrooman  living  at  the  time  of  her  death, 
were  concerned,  no  further  duties  of  an  active  trust  na- 
ture were  contemplated  or  required" 

In  all  cases  where  the  residuum  of  a  trust  estate  is 
vested  in  the  remaindermen,  by  grant  or  devise,  no  deed 
of  conveyance  for  such  purpose  is  contemplated  or  re- 
quired from  the  trustee,  for  the  simple  reason  that  he 
has  no  estate  to  convey. 

SECOND. 

The  Court  having  determined  that,  by  the  devise  to  the 
trustees,  they  became  vested  in  fee  of  the  whole  estate, 


27 

upon  a  valid  trust  to  and  for  the  use  and  benefit  of  the 
children,  and  that  by  the  same  devise  there  was  vested  in 
the  trustees  in  fee  whatever  would  remain  of  the  estate 
after  the  termination  of  the  life  term,  in  trust  to  convey 
such  remaining  estate  to  the  grandchildren  and  others, 
enters  upon  the  consideration  of  the  testator's  di- 
rection to  transfer  and  convey  such  remainder  to  the 
objects  of  his  bounty,  and  denounces  it  as  an  unauthor- 
ized and  unwarranted  attempt  on  his  part  to  create  an 
illegal  and  forbidden  trust;  forgetting,  it  would  seem, 
that  according  to  the  Court's  determination,  he  had  al- 
ready created  a  trust  in  the  trustees  to  convey  such 
remainder  to  the  grandchildren  and  others,  after  the 
extinguishment  of  the  precedent  trust  estate.  Surely,  if 
the  title  to  the  remainder  was  vested  in  the  trustees  in 
fee,  as  a  valid  trust  to  convey,  the  direction  to  that  end 
was  inconsequential  in  so  far  as  it  could  be  deemed  a 
direction  to  convey  by  deed  or  deeds,  for  the  direction 
to  do  what  the  law  required  to  be  done  could  not  possibly 
do  any  harm ;  but  this  direction  was  not  inconsequential 
as  an  expression  of  the  testator's  intention  as  to  the  dis- 
position of  the  remaining  property.  The  Court  admits, 
as  it  is  obliged  to  admit,  that  by  his  words  of  direction 
the  testator  intended  to  give  his  property  remaining  af- 
ter the  expiration  of  the  precedent  trust  estate  to  his 
grandchildren  and  others  named. 

The  effort  on  the  part  of  the  Court,  to  limit  and  con- 
fine the  direction  to  a  conveyance  by  deed,  is  extremely 


28 

narrow,  to  which  the  aphorism,  Qui  haeret  in  litera,  hae- 
ret  in  cortice,  aptly  applies,  yet  the  Court  holds  on  with 
persistent  tenacity  to  its  restricted  interpretation  of  the 
words  of  direction,  as  impossible  of  any  other  meaning 
than  a  conveyance  by  deed;  thus  denying  that  the  in- 
tention of  the  testator  making  disposition  of  his  prop- 
erty can  be  carried  into  effect  in  any  way  other  than 
through  the  medium  of  a  conveyance  by  deed. 

Is  it  not  remarkable  that  in  its  consideration  and  dis- 
cussion of  the  questions  involved  in  the  foregoing  first 
and  second  propositions,  no  heed  was  given  to  the  limita- 
tions contained  in  Section  863,  nor  to  the  declaration  of 
Section  871? 

The  mode  and  way  prescribed  by  the  testator  for 
transmitting  his  property  to  his  grandchildren  and  oth- 
ers is  held  by  the  Court  to  have  been,  in  the  estimation 
of  the  testator,  of  greater  importance  than  was  the  pur- 
pose intended  to  be  accomplished  thereby.  To  him  is 
ascribed  a  sentiment  extremely  puerile.  He  is  represent- 
ed as  cherishing  a  bauble  dearer  to  him  than  the  welfare 
of  his  nearest  and  next  of  kin.  Assuming  that  he  must 
have  known,  as  the  Court  presumes  he  did,  that  a  trans- 
fer and  conveyance  by  deed,  was  not  a  purpose  for  which 
a  trust  could  be  created,  and  which  for  that  reason  must 
fail,  the  Court  concludes  that  he  did  not  intend  that  his 
declared  intention  should  have  effect,  but  on  the  con- 
trary, that  he  did  intend  to  devise  the  whole  fee  to  his 
trustees  upon  trusts  to  convey  the  remainder  to  the  des- 
ignated remaindermen,  so  that  they  would  at  a  future 


29 

time  receive  new  estates  by  conveyances  to  be  made  by 
the  trustees. 

The  conclusion  and  determination  that  the  testator 
did  not  intend  to  devise  the  remainder  to  his  grandchil- 
dren and  others,  seems  to  be  based  on  two  grounds: 
First,  that  the  testator  had  already  devised  in  fee  the 
whole  estate  to  the  trustees  in  trust,  to  convey  the  re- 
mainder to  the  classes  of  persons  by  him  named  as  his 
residuary  devisees,  and,  second,  that  his  direction  to  so 
convey  being  unauthorized  and  void,  it  must  be  Imputed 
to  him,  that  lie  did  not  intend  to  devise  the  remainder  to 
such  nominal  residuary  devisees.  This  idea  is  advanced 
throughout  the  leading  opinion  of  the  Court.  If  the  tes- 
tator did  not  intend  to  devise  the  remainder  of  his  prop- 
erty to  his  grandchildren  and  others,  why  did  he  direct 
it  to  be  conveyed  to  them? 

It  is  said  that  the  testator  did  not  attempt  to  pre- 
scribe to  whom  his  property  should  belong,  in  the  event 
of  the  failure  or  termination  of  the  trust,  and  it  is  also 
said  that  the  whole  estate  was  vested  in  fee  in  the  trus- 
tees by  the  creation  of  the  life  trust,  in  trust  to  convey 
the  same  at  a  future  time  to  Fair's  kindred.  The  opin- 
ion seems  to  be  a  confused  medley  of  incongruities. 

The  predicament  in  which  the  Court  is  placed  is,  in 
the  first  place,  that  the  trustees  having  the  fee  in  the 
remainder  in  trust  to  convey  it  at  a  future  time  to  some- 
body, must  at  that  future  time  convey  it  to  the  grand- 
children and  others;  and  in  the  second  place,  that  he 


30 

did  not  undertake  to  prescribe  to  whom  it  should  be- 
long at  the  termination  of  the  trust,  nor  did  he  intend 
to  devise  it  to  the  classes  or  persons  designated  by  his 
direction  to  transfer  and  convey  such  remainder,  from 
which  it  necessarily  results  that  the  trustees  cannot 
convey  it  to  them  as  directed,  because  forbidden  to  do 
so  as  the  Court  holds.  Why  should  they  convey  the 
corpus  of  the  estate  to  such  classes  of  persons  if  the  tes- 
tator did  not  prescribe  that  it  should  belong  to  them 
after  the  termination  of  the  trust?  The  Court  holds, 
on  the  one  hand,  that  the  testator  intended  by  his  words 
of  direction,  to  give  the  remainder  of  his  property  to 
his  grandchildren  and  others,  and,  on  the  other  hand, 
that  he  did  not  intend  to  devise  it  to  them.  Each  of 
these  postulates  is  a  palpable  contradiction  of  the  other, 
and  therefore  it  is  just  to  say  that  the  opinion  is  a  con- 
fused medley  of  incongruities. 

It  is  manifest  that  the  Court  was  inexorable  in  its  de- 
termination that  the  testator  did  not  intend  to  devise 
the  remainder  of  his  estate  to  the  classes  of  persons  to 
whom  the  Court  admits  he  intended  it  should  finally 
belong  in  full  property. 

The  Court  says,  as  expressed  in  the  syllabus  of  the 
case  as  reported,  that  "The  law  is  not  kindly  disposed 
toward  the  tying  up  of  a  vast  estate  for  a  long  period 
of  years,  by  a  scheme  which  includes  the  disinheritance 
of  the  testator's  children."  Would  it  not  be  more  appro- 


31 

priate  to  say,  the  Court  is  not  kindly  disposed  to  the 
tying  up  of  a  vast  estate  for  a  long  period  of  years,  etc? 
The  syllabus  here  quoted  is  a  succinct  epitome  of  so 
much  of  the  subject  matter  of  the  opinion  as  appears 
at  pages  540,  541,  and  542,  and  also  at  page  549,  which 
declares  the  law  to  be  unkindly  disposed  to  the  tying  up 
of  large  estates  for  long  periods  of  years  to  the  disin- 
heritance of  heirs  and  the  withdrawing  of  the  same 
for  all  those  years  from  the  track  of  commerce.  Is 
it  just  to  say  that  the  law  is  not  kindly  disposed  to  that 
which  the  law  provides  and  permits  to  be  done?  A  pre- 
conceived bias  against  the  law  is  an  embarrassment  to 
a  just  administration  of  the  law.  A.  decision  of  a  Court 
influenced  by  bias  against  a  law  which  it  is  called  upon 
to  expound  is,  to  some  extent  at  least,  the  expression 
of  arrogated  power.  "Judicial  power,"  said  Chief  Jus- 
tice Marshall,  "as  contradistinguished  from  the  power 
of  the  laws,  has  no  existence.  Courts  are  the  mere  in- 
struments of  the  law.  *  *  *  Judicial  power  is  never 
exercised  for  the  purpose  of  giving  effect  to  the  wilt  of 
the  Judge;  always  for  the  purpose  of  giving  effect  to 
the  will  of  the  Legislature,  or,  in  other  words,  to  the 
will  of  the  law."  ( Osborne  vs.  Bank  of  United  States,  9 
Wheat,  773.) 

Here  the  great  Chief  Justice  is  speaking  in  relation 
to  the  rule  which  Judges  are  supposed  to  observe.  A 
Judge  may  exercise  a  power  which  is  mere  brutum 
fulmen. 


32 

Unfriendly  construction  and  adverse  treatment  of  a 
law  by  a  Judge  or  by  a  Court  is  of  the  nature  of  judicial 
legislation,  abrogating  the  law. 

The  limited  and  restricted  construction  of  the  words 
of  the  clause  in  the  will,  directing  the  trustees  to  trans- 
fer and  convey,  at  the  proper  time,  the  remainder  to  cer- 
tain classes  of  persons,  is  directly  opposed  to  the  long- 
settled  rules  of  construction  pertaining  to  last  wills  and 
testaments.  These  rules  are  imperative.  Chief  Justice 
Marshall,  in  Smith  vs.  Bell,  6  Peters,  75,  said:  "The 
first  and  great  rule  in  the  exposition  of  wills,  to  which 
all  other  rules  must  bend,  is  that  the  intention  of  the 
testator  expressed  in  his  will  shall  prevail,  provided  it 
be  consistent  with  the  rules  of  law."  And  so  said  the 
Court  in  Colton  vs.  Colton,  127  U.  S.,  300. 

Section  1317  of  our  Civil  Code  declares  that  "A  will 
is  to  be  construed  according  to  the  intention  of  the  tes- 
tator. When  it  cannot  have  effect  to  its  full  extent,  it 
must  have  effect  as  far  as  possible."  This  section,  as 
also  the  decision  of  Chief  Justice  Marshall,  has  reference 
to  the  testator's  intention  as  to  the  disposition  of  his 
property,  and  in  no  sense  to  the  mode  and  way  for 
effectuating  such  intention. 

Section  1328  of  the  Code  provides  that  "Technical 
words  are  not  necessary  to  give  effect  to  any  species  of 
disposition  by  a  will."  The  intention  of  a  testator  ex- 
pressed in  his  will  as  to  the  disposition  of  his  property 
is  said  in  many  cases  to  be  the  Polar  Star  for  the  direc- 


33 

tion  and  guidance  of  Courts  in  the  exposition  of  wills. 
(Samjcr  vs.  Baldwin,  20  Pick.,  384.) 

Any  form  of  words  which,  by  fair  and  liberal  con- 
struction, shows  what  was  the  testator's  intention  as 
to  the  disposition  of  his  property,  is  sufficient.  This  is 
familiar  law. 

The  testator's  direction  to  transfer  and  convey  the 
property  to  the  persons  by  him  designated  was  a  clear 
and  unequivocal  expression  of  his  intention.  The  form 
and  way  prescribed  for  carrying  his  intention  into  effect 
could  not  impair  or  defeat  such  intention. 

The  law  is  that  a  clause  or  paragraph  in  a  will,  or 
other  instrument,  which  may  be  illegal  and  void  for- 
one  purpose,  may  be  good  and  valid  for  another  lawful 
in  itself.     This  was  so  held  in  Savage  vs.  Burnham,  17 
N.  Y.,  561,  and  the  same  rule  was  declared  in  Harrison 
vs.  Harrison,  36  N.  Y.,  547.    This  rule  was  laid  down  by 
Lord  Coke  as  follows:     "Wheresoever  the  words  of  a 
deed,  or  of  the  parties  without  a  deed,  may  have  a  double 
intendment,  and  the  one  standeth  with  law  and  right, 
and  the  other  is  wrongful  and  against  law,  the  intend- 
ment that  standeth  with  law  shall  be  taken."     (Coke 
Litt.,  42.)     This  rule  was  applied  in  the  case  of  a  will 
in  Atkinson  vs.  Hutchinson,  3  P.  Williams,  260,  and  in 
Butler  vs.  Butler,  3  Barb.  Ch.,  310,  by  Chancellor  Wai- 
worth,  in  these  words: 

uln  the  construction  of  a  will,  if  the  language  of 
the  testator  is  such  that  it  may  be  construed  in  two 


34 

different  senses,  one  of  which  would  render  the  dis- 
position of  his  property  illegal  and  void,  and  the 
other  would  render  it  valid,  the  Court  should  give 
that  construction  of  the  language  which  would  make 
the  disposition  of  his  property  effectual." 

And  the  same  rule  was  laid  down  by  Mr.  Justice 
Storey,  in  Nightingale  vs.  Sheldon.,  5  Mason,  336-339,  as 
follows : 

"If  there  are  two  intentions  on  the  face  of  the 
will,  one  of  which  is  general  and  consistent  with 
the  rules  of  law,  and  another  is  special  and  incon- 
sistent with  the  rules  of  law,  the  latter  yields  to  the 
former,  and,  if  necessary  to  give  effect  to  the  will, 
must  be  rejected  altogether." 

See,  also,  Hunt  vs.  Brooks,  80  Va.,  500,  and  Prudon  vs. 
Prudon-,  14  Ohio  St. 

This  rule  of  construction  is  in  harmony  with  the 
whole  doctrine  of  the  law  of  wills,  and  especially  appli- 
cable to  the  proper  and  just  construction  of  the  words 
of  direction  contained  in  the  will  of  Senator  Fair.  Ut 
res  magis  valeat,  quoin  pereat  is  a  maxim  of  the  law 
of  general  application,  and  especally  so  as  to  wills. 
(Broom's  Legal  Maxims.) 

However  invalid  and  void  may  be  the  mode  or  way 
provided  by  the  testator  for  the  disposition  of  his  prop- 
erty, his  language  may  be  resorted  to  for  the  purpose 
of  ascertaining  his  intention  in  respect  to  the  disposi- 
tion of  his  property.  This  rule  is  declared  in  Van  Kleek 


35 

vs.  Dutch  Church,  20  Wend.,  477;  Tucker  vs.  Tucker, 
1  Selden,  418,  and  in  Morton  vs.  Woodbury,  153  N.  Y., 
252.,  and  in  Cooke  vs.  Platt.  98  N.  Y.,  35,  the  rule  is  prac- 
tically demonstrated  as  to  a  void  trust  in  its  inception 
operating  as  a  devise  of  the  estate  in  fee  to  specified  re- 
maindermen in  being. 

In  support  of  its  limited  and  strict  construction  of 
the  words  of  direction  to  transfer  and  convey,  the  Court 
necessarily  subordinates  the  testator's  main  and  para- 
mount intention  for  the  ultimate  disposition  of  his 
property,  to  the  form,  method  and  way  indicated  by  him 
to  that  end.  This  is  in  direct  contravention  to  a  well- 
settled  rule  of  law  laid  down  in  many  cases.  In  the 
celebrated  case  of  Thelluson  vs.  Woodford,  4  Vesey,  Jr., 
329,  it  was  said  by  the  Master  of  the  Rolls,  speaking  of 
the  intention  of  a  testator  as  to  the  disposition  of  his 
property,  that : 

"If  the  Court  can  see  a  general  intention,  con- 
sistent with  the  rules  of  law,  but  the  testator  has 
attempted  to  carry  that  into  effect  in  a  way  that  is 
not  permitted,  the  Court  is  to  give  effect  to  the 
general  intention,  though  the  particular  mode  shall 
fail." 

The  Supreme  Judicial  Court  of  Massachusetts  laid 
down  the  same  rule  in  the  cases  of  Bartlett  vs.  Kim,  12 
Mass.,  543,  and  Malcomb  vs.  Malcomb,  3  Cush.,  477,  and 
the  Supreme  Court  of  the  United  States,  in  the  great 


36 

case  of  Inglis  vs.  Sailors  Snug  Harbor,  3  Peters,  118,  in 
speaking  of  this  rule,  said : 

UA  rule  so  reasonable  and  just  in  itself,  and  in 
such  perfect  harmony  with  the  whole  doctrine  of 
the  law  relating  to  the  construction  of  wills,  can- 
not but  receive  the  approbation  and  sanction  of 
all  Courts  of  Justice." 

These  several  settled  rules  of  construction,  especially 
applicable  to  wills,  failed  to  secure  from  our  Court  a 
passing  notice.  Certainly  they  were  not  heeded  in  the 
Court's  construction  of  the  will  in  question. 

There  are  many  cases  that  have  come  before  the  New 
York  Courts,  in  which  it  appears  that,  following  the 
creation  of  a  trust  of  real  property,  for  the  use  and 
benefit  of  specified  beneficiaries  for  and  during  their 
lives,  there  was  a  direction  to  convey  the  property  re- 
maining at  the  termination  of  the  life  trust,  to  Arsons 
or  classes  of  persons  named,  in  none  of  which  cases 
Avas  it  questioned  that  such  a  direction  operated  as  an 
effective  devise  of  the  remainder.  In  none  of  them  was 
it  pretended  that  the  direction  needed  to  be  carried  into 
execution  by  a  deed  of  conveyance.,  except  in  a  few  in- 
stances by  powers  in  trust,  in  cases  where  it  appeared 
that  the  author  of  the  trust  retained  in  himself  the  whole 
estate  and  interest,  subject  to  the  execution  of  the  trust, 
until  its  termination.  Such  was  the  case  of  the  trust 
created  by  Mrs.  Curtis,  which  was  considered  in  Toivn- 
send  vs.  Frommer.  And  in  most  cases  where  the  testa- 


37 

t 

tnentary  disposition  of  the  remainder  might  be  carried 
into  effect  by  and  through  a  power  in  trust  conferred 
on  the  trustee,  it  was  held  that  such  remainder  was 
vested  in  the  residuary  devisee  at  the  moment  of  the 
creation  of  the  trust,  thereby  obviating  the  necessity  of 
an  exercise  of  the  power  conferred  on  the  trustee  to 
convey.  Such  was  the  case  of  Oilman  vs.  Redington, 
and  the  Livingston  case  and  Watkins  vs.  Vrooman  and 
Reynolds,  and  Campbell  vs.  Stokes,  and  Cooke  vs.  Platt} 
98  N.  Y.,  35.  In  Cookc  vs.  Plait,  the  devise  was  in  terms 
an  absolute  conveyance  of  the  estate  devised.  The  de- 
vise was  to  the  testator's  executors,  "to  collect  and  re- 
ceive the  rents,  issues  and  profits  thereof,  and  to  con- 
tract to  sell,  mortgage  and  convey  the  estate  in  their 
discretion,  upon  trust  nevertheless  to  divide  and.  dis- 
tribute the  estate,  or  its  proceeds,  after  the  payment  of 
debts,  to  the  testator's  four  children  in  equal  propor- 
tions.'' This  trust  was  pronounced  by  the  Court  to  be 
invalid  and  void  because  of  the  discretionary  poiver 
given  to  the  executors  as  trustees,  and  for  another  cause 
appearing  in  the  opinion  of  the  Court.  And  in  its  de- 
termination the  Court  said : 

"Our  conclusions  are :  First,  that  no  valid  trust 
was  created  in  the  testator's  real  estate  by  the  will 
in  question;  second,  that  the  four  children  of  the 
testator  are  vested  with  the  title  to  the  real  estate 
of  the  testator,  as  devisees  in  fee  under  the  will." 

The  attempted  trust  in  this  case  was  invalid  and  void 
in  its  creation. 

.306568 


38 

And  in  Bruner  vs.  Meigs,  64  N.  Y.,  506,  the  Court 
said: 

"The  power  and  direction  to  transfer  and  convey 
the  share  or  portion  of  the  estate  to  those  entitled 
under  the  will  after  the  death  of  the  cestui  que  trust 
for  life  did  not  constitute  a  trust,  or  require  the 
estate  to  be  vested  in  the  executors  and  trustees 
named.  It  was  merely  a  power  in  trust  and  could 
be  executed  as  such.  The  estate  and  interest  of 
those  entitled  in  remainder  did  not  depend  upon 
the  execution  of  that  power,  and  the  vesting  of 
their  estate  could  not  be  defeated  or  delayed  by  the 
neglect  or  omission  of  those  vested  with  the  power." 

See,  also,  Moore  vs.  Appleby,  36  Hun.,  368,  and  same 
case  on  appeal,  108  N.  Y.,  237. 

I  believe  it  may  be  safely  affirmed  that  in  all  cases 
where  it  appears  that  the  testator  intended  in  the  crea- 
tion of  the  primary  trust,  followed  by  a  direction  to 
convey  the  remainder,  to  vest  in  the  remaindermen  a 
present  interest.,  the  Courts  of  that  State  have  held  that 
it  was  not  necessary  to  have  recourse  to  the  exercise  of 
a  power  in  trust  conferred.  ( Chaplin  on  Express  Trusts 
and  Powers,  Sec.  614.) 

It  is  worthy  of  notice  that  in  all,  or  nearly  all,  of  such 
cases,  the  only  words  of  devise  of  the  remainder  were 
found  in  the  direction  to  convey. 

It  is  evident  that  the  New  York  Courts  did  not,  in  a 
single  case,  regard  the  direction  to  convey  in  any  other 
sense  than  as  words  expressive  of  the  testator's  inten- 


39 

tion  in  making  a  testamentary  disposition  of  his  prop- 
erty. And  in  none  of  the  decisions  of  the  Courts  of  that 
State  is  it  pretended  or  admitted  that,  after  the  termina- 
tion of  such  life  trust,  any  estate  remains  vested  in  the 
trustees.  That  such  can  be  the  case  is,  in  effect,  denied 
in  the  above  cases  of  Embury  vs.  Sheldon,  Stevenson  vs. 
Lesley,  and  clearly  so  in  Bruner  vs.  Meigs,  Moore  vs. 
Appleby,  36  Hun.,  368,  and  108  N.  Y.,  237,  and  also  in 
Cooke  vs.  Platt,  98  N.  Y.,  35,  as  above  appears. 

These  decisions  are  in  harmony  with  others  cited  to 
the  effect  that  the  primary  trust  is  only  of  a  life  estate — 
a  limited  and  temporary  trust  and  trust  estate — and  of 
only  so  much  of  the  estate  as  may  be  necessary  for  the 
performance  of  the  active  duties  of  the  trust,  as  said  by 
Judge  Peckham  in  Wathins  vs.  Reynolds  and  Vrooman, 
123  N.  Y.,  211,  and  this  is  in  harmony  with  our  Code 
Statute  of  uses  and  trusts,  which,  for  the  most  part, 
was  wholly  disregarded  by  our  Court,  as  seen  by  its 
leading  opinion  in  the  case  of  James  G.  Fair,  deceased. 

The  New  York  Courts  have  with  unanimity  regarded 
a  direction  to  convey,  though  not  of  the  authorized  pur- 
poses of  a  trust,  as  good  and  valid  for  the  lawful  pur- 
pose of  devise,  disregarding  the  direction  to  do  that 
which  is  not  permitted,  and  therefore  futile  and  ineffec- 
tual, while  our  Court  persistently  refuses  to  give  to  the 
direction  to  convey  the  effect  of  a  devise. 

Our  Court  gives  to  the  words  of  direction  to  convey, 
a  potency  sufficient  to  break  down  the  will,  and  to  that 
end,  holds  such  words  to  mean  only  that  which  is  un- 


40 

authorized  and  forbidden  by  law,  notwithstanding  the 
rules  of  construction  laid  down  by  Lord  Coke,  and 
Chancellor  Wai  worth,  and  Justice  Storey,  as  above  ap- 
pears. 

Is  there  anybody  who,  after  having  read  the  will  in 
question,  ever  doubted  for  a  moment  that  the  testator 
intended  to  give  and  devise  the  property  of  his  estate  to 
the  persons  or  classes  of  persons  named  in  the  clause 
of  his  will,  directing  a  transfer  and  conveyance  of  such 
property  to  them?  What  about  "the  first  and  great  rule 
in  the  exposition  of  wills,  to  which  all  other  rules  must 
bend?"  "The  question  is,"  said  Denio,  C.  J.,  in  Everett 
vs.  Everett,  29  N.  Y.,  95,  "not  whether  the  language  will 
bear  some  other  construction — a  construction  which  will 
defeat  the  intention,  and  render  the  provisions  of  his 
will  illegal  and  void — but  whether  it  will  prevent  a  law- 
ful intention  to  have  effect." 

The  law  of  wills;  the  law  giving  effect  to  the  general 
and  paramount  intention  of  the  testator  as  to  the  dis- 
position of  his  property,  rather  than  to  the  form  and 
mode  for  effectuating  such  intention;  the  rule  of  con- 
struction required  by  law,  where  a  will  or  other  instru- 
ment is  of  a  two-fold  intendment,  are  respected  and  fol- 
lowed by  the  New  York  Courts.  Is  there  any  reason 
why  they  should  not  be  respected  and  followed  by  our 
Courts  as  rules  and  guides  in  the  exposition  of  wills? 

The  decision  of  our  Court,  as  to  the  first  and  second 
of  the  foregoing  propositions,  standing  as  the  law  of  the 


41 

case  in  hand,  would  not,  unaided,  operate  to  injuriously 
affect  the  primary  trust  created  for  the  use  and  benefit 
of  Fair's  children.  To  the  end  of  breaking  down  the 
trust  it  was  necessary  and  indispensable  to  establish  the 
third  of  the  foregoing  propositions. 

THIRD. 

To  break  down  the  trust,  valid  in  itself,  it  was  essen- 
tial to  make  it  dependent  upon  the  alleged  attempted 
futile  trust  to  transfer  and  convey.  These  two  factors — 
the  one  a  valid  trust,  and  the  other  illegal  and  void — are 
considered  and  held  by  the  Court  to  be  so  interblended 
and  inseparably  connected  as  to  compel  the  valid  trust 
to  share  the  ill  fate  of  the  alleged  attempted  illegal  trust 
to  transfer  and  convey.  This  was  the  third  proposition 
necessary  and  indispensable  for  the  breaking  down  of 
the  valid  trust. 

The  devise  of  the  whole  estate  to  the  trustees  in  fee, 
including  the  remainder  of  it,  to  be  conveyed  by  them 
at  a  future  time  to  the  persons  named  as  ultimate  de- 
visees, and  the  alleged  illegal  direction  to  convey,  our 
Court  holds  as  necessarily  constituting  a  scheme,  which 
the  testator  intended  to  be  carried  into  effect  literally 
by  a  deed  of  conveyance,  and  that  if  it  could  not  be  so 
carried  into  effect  he  did  not  intend  it  to  be  carried 
into  effect  in  any  particular.  To  maintain  this  proposi- 
tion, it  was  necessary  to  steadily  adhere  to  the  construc- 
tion of  the  clause  of  direction  to  transfer  and  convey, 
as  meaning  a  conveyance  by  deed,  or  deeds,  and  further, 


42 

to  maintain  that  such  direction  cannot  be  construed  to 
constitute  and  operate  as  words  of  devise.  This  limited 
construction,  it  appears,  is  in  direct  conflict  with  the 
law  of  wills  and  the  rules  of  construction  laid  down  by 
Lord  Coke  and  eminent  Judges  all  the  way  down  from 
his  time  to  the  present  day,  and  which  are  respected 
and  maintained  by  the  highest  Courts  of  both  England 
and  America  as  elementary  law. 

If  it  be  admitted  that  the  testator  intended  to  create 
a  trust  to  convey,  which  is  an  unauthorized  medium  for 
such  purpose,  and  that  because  thereof  it  must  fail,  in 
such  case  it  must  also  be  admitted  that  he  thereby  in- 
tended to  give  the  property  to  his  grandchildren  and 
brothers  and  sisters,  and  the  children  of  deceased 
brothers  and  sisters,  then  living.  By  the  condemned 
direction  as  to  mode  and  way,  he  declared  his  wish  and 
will  as  to  whom  the  property  should  eventually  belong 
in  fee  simple.  The  Court  admits  that  such  was  his  in- 
tention. Such  intention  stands  out  conspicuously  and 
unequivocally.  This  was  a  lawful  intention,  while  the 
mode  provided  for  effectuating  it  was,  as  the  Court 
holds,  forbidden.  The  direction  to  transfer  and  convey 
related  especially  to  the  gift  of  his  property  to  the  per- 
sons designated  thereby,  to  have  it  as  their  own  prop- 
erty. As  a  declaration  of  his  intention  in  this  respect, 
it  was  clearly  expressed,  and  no  amount  of  argument 
can  obscure  this  fact.  No  amount  of  asseverations  em- 
phasized by  adjectives  and  adverbs  can  destroy  this  con- 
spicuous fact. 


43 

The  trust  created  for  the  benefit  of  the  testator's  chil- 
dren was  a  matter  standing  out  independently  from  any 
question  as  to  what  might  become  of  the  remainder  of 
the  estate  after  the  termination  of  that  trust.  The  chil- 
dren, dead  and  gone,  could  not  have  any  concern  in  such 
remainder.  The  disposition  of  it  concerned  the  testator 
and  those  to  be  benefited  thereby.  How  were  the  two 
estates  inseparably  connected?  The  Court  does  not  tell 
us,  except  by  reference  to  a  supposed  childish  idiosyn- 
cracy  of  the  testator  constituting  intention  on  his  part 
to  the  effect  that  his  gift  to  his  grandchildren  and 
brothers  and  sisters  should  be  consummated  only  by  and 
through  a  deed  or  deeds  of  conveyance,  to  be  executed 
by  the  trustees,  thus  subjecting  and  subordinating  his 
paramount  general  purpose  to  mode,  form  and  way  for 
effectuating  such  purpose. 

The  idea  or  theory  of  an  inseparable  relation  between 
the  valid  life  trust  and  the  alleged  unauthorized  direc- 
tion to  transfer  and  convey  the  remainder  is  founded 
upon  a  conjecture  as  to  the  intention  of  the  testator. 
The  Court  holds  that  he  intended  the  two  to  stand  to- 
gether or  to  fail  and  fall  together.  This  determination 
is  purely  ex  cathedra,  and  nothing  beyond  that,  unless 
warranted  by  facts  as  premises  justifying  the  conclusion. 
Therefore  the  Court's  conclusion  is  open  to  question, 
and  justly  so,  when  found  to  be  opposed  to  settled  rules 
of  law  based  upon  bed-rock  principles  of  reason  and 
justice. 

The    Court's    conjecture    in    respect    to    the    testa- 


44 

tor's  intention  that  the  valid  trust  and  the  alleged  un- 
authorized direction  to  transfer  and  convey  must  stand 
or  fall  together  is  opposed  to  our  Code  Statute,  which, 
declaratory  of  the  general  law  of  wills,  provides  that 
"when  it  (the  will)  cannot  have  effect  to  its  full  extent, 
it  must  have  effect  as  far  as  possible."  In  Everett  vs. 
Everett,  29  N.  Y.,  xupra,  it  is  said :  "The  question  is 
not  whether  the  language  will  bear  a  construction  which 
will  defeat  the  testator's  intention  and  render  the  pro- 
visions of  his  will  illegal  and  void,  but  whether  it  will 
prevent  a  lawful  intention  to  have  effect."  The  trust, 
valid  as  such  in  its  creation,  could,  as  an  expression  of 
the  testator's  intention  to  devise  his  whole  estate  to 
trustees  in  trust  for  the  use  and  benefit  of  his  children, 
have  effect,  even  though  the  direction  to  transfer  and. 
convey  the  remainder  to  grandchildren  and  others  could 
l>e  justly  pronounced  invalid  and  void.  Why  not?  In 
Green  vs.  Green,  125  N.  Y.,  the  Court  said:  "The  en- 
deavor is  to  find  a  way  of  upholding  the  will,  not  to 
break  it  down." 

In  cases  wrhere  some  of  the  provisions  of  a  will  must 
fail  because  of  illegalitv,  the  constant  endeavor  of  Courts 

•/  7 

has  been  to  save  the  lawful  provisions  of  the  will  and 
to  carry  them  into  effect  in  accordance  with  the  testa- 
tor's intention.  Mere  conjecture  as  to  the  testator's  in- 
tention is  never  allowed  to  prevail  against  the  law  of 
wills.  Nowhere  in  the  will  of  Senator  Fair  is  there  any 
expression  from  which  it  can  be  inferred  that  he  enter- 
tained in  the  remotest  degree  the  intention  attributed 


45 

to  him  by  the  Court  to  the  effect  that  the  valid  trust 
must  fail  in  case  his  direction  to  transfer  and  convey 
should  be  pronounced  illegal  and  void. 

St-lwHie,  resting  for  its  support  upon  conjecture,  is 
an  intangible  quantity — an  imaginary  entity,  as  unreal 
as  the  phantom-like  imagery  of  a  far-off  mirage,  which, 
pursued,  is  ever  far  away. 

The  discovered  scheme  of  the  testator,  assumed  to  be 
found  in  his  will,  seems  to  be  the  offspring  of  the  cen- 
tral idea  or  purpose  imputed  to  the  testator,  to  subor- 
dinate his  general  intention  as  to  the  disposition  of  the 
property  of  his  estate  to  the  form,  method  and  way 
pointed  out  by  him  for  the  accomplishment  of  such  in- 
tention and  purpose.  The  form,  method  and  way  is 
constituted  the  Polar  Star  for  the  guidance  of  our  Court 
in  its  exposition  of  the  will  in  question. 

The  Court  says,  at  pages  541,  542,  of  the  opinion,  that 
"The  testator  intended,  through  the  devise  to  the  trus- 
tees and  anticipated  conveyances  by  them — 'for,  of 
course,  he  must  be  deemed  to  have  been  ignorant  of  the 
illegality  of  the  trust  to  convey,  and  to  have  supposed 
that  it  would  be  performed' — to  dispose  of  the  tempo- 
rary income  to  his  children  during  their  lives,  and  ulti- 
mately the  entire  corpus  of  the  property,  leaving  no  part 
of  the  fee  undisposed  of;  and  his  division  of  the  income 
was  based  upon  the  consideration  of  the  persons  who 
would  or  would  not  ultimately  get  the  corpus  of  his 
property." 


46 

The  passage  here  quoted  is  somewhat  obscure,  but 
seems  to  be  an  endeavor  by  conjecture  to  determine  that 
the  testator  intended  a  scheme  which  could  not  be  car- 
ried into  execution,  and  that  as  a  consequence  the  will, 
in  all  its  parts  relating  to  real  property,  must  fail. 

Ignorant,  indeed,  the  testator  must  have  been,  if  he 
supposed  he  could  create  a  trust  to  convey  the  remain- 
der or  that  an  attempted  trust  to  that  end  could  be  per- 
formed. But  he  was  not  ignorant,  nor  is  it  pretended 
that  he  was,  as  to  his  intention  that  the  corpus  of  the 
remaining  estate  should  go  directly  to  his  grandchil- 
dren and  others  named,  and  that,  too,  by  the  expression 
of  such  intention  in  his  words  of  direction  to  transfer 
and  convey.  The  valid  trust  estate,  and  the  estate  in 
remainder  vested  in  the  residuary  devisees,  could  con- 
sistently exist  at  the  same  time,  independently  of  each 
other,  as  held  in  Embury  vs.  Sheldon,  and  Stevenson 
vs.  Lesley,  supra. 

The  theory  of  a  scheme  that  must  break  down  the 
valid  life  trust,  so  far  as  anything  is  said  by  the  Court 
in  support  thereof,  seems  wholly  speculative  and  un- 
certain. What  is  said  upon  the  point  consists  of  as- 
severations only. 

The  rules  and  doctrines  of  the  law  of  wills  and  of 
double  intendments,  as  laid  down  by  Lord  Coke  and 
eminent  Jurists  since  his  time,  negative  the  conclusion 
of  our  Court  in  respect  to  every  proposition  involved  in 
the  interpretation  and  construction  of  the  will  of  James 


G.  Fair,  deceased.  Placing  the  two  factors,  namely,  the 
valid  trust,  complete  in  itself,  and  the  alleged  invalid 
devise  of  the  remainder,  side  by  side,  and  looking  at 
and  comparing  them  with  judicial  impartiality,  it  may 
be  asked  wherein  are  these  two  interblended,  interwoven 
and  inseparably  connected?  Wherein  are  they  the  evi- 
dence of  the  scheme  imputed  to  the  testator? 

Summing  up,  at  page  549,  the  Court,  per  Garoutte,  J., 
says: 

"The  Court  concludes  that  the  fee  to  Fair's  prop- 
erty was  cast  in  the  trustees  in  trust,  to  transfer 
and  convey  to  certain  of  his  kindred;  that  his  in- 
tention to  so  place  the  fee  stands  out  plainly  from 
the  face  of  the  entire  will;  that  no  contrary  inten- 
tion whatever  appears  therefrom,  and  that  the  will 
must  fail  by  reason  of  the  prohibited  trust." 

And  thereupon  it  is  added : 

"We  are  more  satisfied  with  this  result,  when  it 
is  considered  that  a  contrary  conclusion  would  per- 
petuate a  trust  of  this  vast  estate,  probably  for  a 
period  of  fifty  years  or  more,  and  also  result  in  the 
disinheritance  of  Fair's  children.  Notwithstanding 
a  man  has  a  right,  under  the  law,  to  make  a  will, 
still  the  law  is  not  kindly  disposed  to  either  of  these 
things,  and  if  this  was  a  clearly  balanced  case,  these 
threatened  results  would  furnish  reasons  for  a  de- 
cision the  other  way." 

These  expressions  of  satisfaction,  for  the  reasons  as- 
signed, seem  to  be  unfortunate  as  evincing  a  precon- 


48 

ceived  bias  against  the  will  of  the  testator  in  all  its 
parts. 

Why  should  the  Court  concern  itself  about  the  dis- 
inheritance of  the  testator's  children,  for  whom  he  pro- 
vided for  all  their  lives,  the  income  of  all  his  "vast  es- 
tate?" Why  should  the  Court  declare  itself  as  inimical 
to  the  law  which  authorizes  the  creation  of  trusts,  which 
may  perpetuate  the  existence  of  an  estate  for  fifty  years 
or  more,  withholding  it  for  all  that  time  from  the  power 
of  alienation?  Conceding  that  a  man  has  the  right  to 
make  a  will,  why  subject  it  to  unfriendly  construction 
and  judicial  condemnation? 

The  breaking  down  of  a  testator's  will  is  very  much 
like  the  making  of  a  new  will  for  him,  disposing  of  his 
property,  not  in  accordance  with  his  wish  and  will,  but 
as  provided  in  cases  of  intestacy,  by  the  laws  of  descents 
and  distributions. 

San  Francisco,  March,  1902. 


)F  CALIFORNIA 

AT 
T/VS 


UC  SOUTHERN  REGIONAL  UBRARY  FACILITY 


A     000  688  349     0 


